DUI convictions at risk in California, Bay Area prosecutor warns

Jaskaran Gill was still on probation for a DUI when he was caught doing 100 mph on Interstate 880 in San Jose with his blood-alcohol concentration nearly twice the legal limit.

A second drunken-driving conviction could have stripped him of his driver's license for at least a year and landed him in jail. But a more devastating likelihood loomed: The State Bar might deny Gill the right to practice law or significantly delay the start of his career at a time when he was more than halfway through Santa Clara University law school.

So, Gill claimed that his blood-alcohol level wasn't really 0.14, as the Santa Clara County crime lab had reported in early 2010. The lab's methodology was outdated, he claimed, rendering the test scientifically invalid and therefore not admissible as evidence in court.

Gill's novel defense tactic failed, thanks to a dedicated young prosecutor who won an epic battle with the law student's lawyers -- and to the county crime lab, which demonstrated that Gill would be considered drunk even if the test had been performed using the more up-to-date procedure.

But now, the same prosecutor, Christopher Boscia, is warning that drunken-driving prosecutions across California are vulnerable to similar legal challenges.

"It is simply a matter of time before a trial court in California excludes blood results based on this novel defense tactic," Boscia writes in a highly technical, 32-page article in the upcoming edition of the Santa Clara Law Review. "If successful, this tactic could undermine every DUI prosecution in the state."

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Desperate challenges

Defendants are always coming up with desperate ways to challenge DUI prosecutions, from attacking the credentials of a lab technician to claiming someone else was driving. But the strategy Gill used has already worked in Washington state and Michigan, though so far just in the lower courts.

In California, Boscia contends, the only way to protect some 200,000 annual prosecutions from a possible decision by a judge to exclude the results is if all crime labs revise their procedures and the Legislature updates the DUI regulations. Santa Clara County already has switched to a new protocol for blood-alcohol tests. If an appellate court were to uphold a lower court decision to exclude the results on this theory, it would be binding statewide.

The way the test is now done is arguably outdated for two reasons. Much of the equipment used throughout the state has not been certified as accurate under international standards. The other problem is that a test result -- for instance, Gill's 0.14 blood-alcohol level -- is really an estimate of the true value. It actually needs to include another calculation called the measure of uncertainty, which is somewhat like the margin of error in a poll.

In Gill's case, the uncertainty turned out to be plus or minus 4 percent, a fairly tiny range that still put him well over the limit. But in borderline cases, where a defendant's blood-alcohol level is close to the legal limit, presenting a range of values could make a decisive difference. And defense attorneys also can argue, as they did in Gill's trial, that the range of values must be reported in every case because expressing someone's blood-alcohol concentration as a single value gives the judge or jury false confidence in the results.

"Without the measure of uncertainty, the information in a single value is actually misleading," said Ted Vosk, a Harvard law graduate with an undergraduate degree in physics and math, and the leading national expert on these kind of DUI challenges.

In California so far, defense attorneys haven't been able to persuade judges to exclude the single-value test results. But some lawyers have found -- especially in borderline cases -- that the argument undermines the jury's confidence in the prosecution.

"I make the challenge regularly," said Peter Johnson, the Contra Costa County lawyer who represented Gill. "In one case, the jury told us that was the reason for the acquittal. Some judge at some point is going to take it seriously."

Doubt as a tactic

The concept of uncertainty has been discussed in scientific circles at least since the early 1900s, Boscia writes. In 2011, the not-for-profit group that accredits crime labs issued a guideline advising them they had to convert to it for a broad series of tests, not just for blood alcohol. But the labs and legal community protested, and the deadline was postponed until the end of 2013.

"Uncertainty sounds like doubt, even though it's not," Boscia said. "Whenever prosecutors hear the word, they want to run in the other direction."

Some labs have begun the conversion, including the Contra Costa County lab, where Gill's mother works as a toxicologist. But at the time of her son's trial in 2010, her lab had not adopted the new procedures, she acknowledged in a phone interview.

Boscia argues that DUI prosecutions are still vulnerable for several reasons. First, in counties that haven't switched to the new way of handling DUI tests, the tests could be challenged for the next six months.

But even after the change, there will be thousands of blood samples that were tested under the old model that cannot simply be retested using the new procedure to calculate the uncertainty because the defense could argue that alcohol tends to deteriorate over time.

A third problem, Boscia says, is that there will be a conflict between the state's regulations covering DUI cases and the way in which crime labs are handling DUI tests. The prosecutor said defense lawyers could then take a different tack and attack those scientifically valid results on that technical conflict. He's calling for the Legislature to quickly update the law -- and also to set up a forensic science advisory board to ensure that the best science is being practiced and presented to juries in California courtrooms.

Boscia also is traveling around the state training other prosecutors how to fend off any legal challenges. Most DUIs are prosecuted by busy novices in three to five days; Boscia's trial stretched over six weeks and lasted 20 days.

"It's important Chris' message be heard,'' said Sepideh Mousakhani, editor of the Santa Clara Law Review. "(His) article has the potential to make a great difference in the legal community."

As for Gill, he was sentenced to 210 days in jail. Now, about 2﻿1/2 years after his arrest, he has remained sober and is still trying to gain admission to the State Bar -- including, his mother said, by volunteering full time for Mothers Against Drunk Driving.